Citation Nr: 0516697
Decision Date: 06/20/05 Archive Date: 06/27/05
DOCKET NO. 03-33 333 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to service connection for bilateral ankle
disability.
2. Entitlement to service connection for bilateral shoulder
disability.
3. Entitlement to service connection for bilateral knee
disability.
4. Entitlement to service connection for low back
disability.
5. Entitlement to service connection for right foot
disability.
6. Entitlement to service connection for left hip
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The veteran had active military service from August 1974 to
July 1976, and from April 1979 to May 1999.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a March 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York.
FINDING OF FACT
The veteran does not have a diagnosed shoulder, left hip, low
back, knee, ankle or right foot disability that is due to his
military service.
CONCLUSION OF LAW
The veteran does not have a diagnosed shoulder, left hip, low
back, knee, ankle or right foot disability that is the result
of a disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 redefined VA's
duty to assist a claimant in the development of a claim.
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, VA must
notify the claimant of the information and evidence not of
record that is necessary to substantiate a claim, which
information and evidence VA will seek to provide, which
information and evidence the claimant is expected to provide,
and to ask for any evidence in the claimant's possession that
pertains to a claim.
The veteran filed his claim for service connection for the
disabilities at issue in September 2000. In an August 2001
correspondence, VA informed him of the information and
evidence necessary to substantiate his claims. VA advised
him of his responsibilities as well as of VA's
responsibilities in obtaining evidence in connection with his
claims. He was also advised to submit any pertinent evidence
in his possession. His claims were denied in a March 2003
rating decision, and he thereafter perfected his appeal of
the issues listed on the title page of this action. The
record therefore shows that he has been provided with the
notice to which he is entitled pursuant to 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b).
With respect to VA's duty to assist the veteran in obtaining
evidence in connection with his claims, the Board points out
that all relevant evidence identified by him, and for which
he authorized VA to obtain, is on file. The Board notes that
the veteran reported serving in the U.S. Marine Corps
Reserves for a period of time beginning in 1976. In May
1978, the veteran's Reserves command forwarded available
service medical records on file with that activity. In
October 2000, the activity indicated that service medical
records for the veteran were no longer maintained.
Thereafter, the National Personnel Records Center forwarded
all available service medical records for the veteran. The
record reflects that the veteran has also provided service
medical records in his possession. The Board consequently
concludes that VA's duty to assist the veteran in obtaining
service medical records has been fulfilled.
In addition, the veteran was afforded a VA examination in
connection with his claims in January 2003. The veteran's
representative argues that the examiner did not adequately
address functional impairment due to factors such as pain, in
accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995). The
Board points out, however, that DeLuca involved the rating of
a disability for which service connection was already in
effect, and that the regulations at issue in DeLuca are
themselves predicated on the existence of an underlying
pathology to account for symptoms. The January 2003 examiner
concluded that the veteran in fact has no ankle, shoulder,
knee, low back, right foot or left hip disabilities. The
Board has reviewed the report of the January 2003 VA
examination, and finds that it is adequate for the purpose of
fairly adjudicating the veteran's claims.
In sum, the facts relevant to this appeal have been properly
developed and there is no further action to be undertaken to
comply with the provisions of the VCAA or the implementing
regulations.
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
In order for service connection to be granted for a claimed
disability there must be competent evidence of the current
existence of the claimed disability. Rabideau v. Derwinski,
2 Vet. App. 141, 144 (1992).
I. Bilateral ankle disability
Factual background
Service medical records show that the veteran was treated in
June 1993 for a right ankle strain, which showed improvement
by the next day. In April 1995, he was treated for
tendonitis affecting the right ankle. In August 1997 he was
treated following his report or a five day history of a left
ankle sprain. The diagnosis in August 1997 was healing left
ankle sprain.
X-ray studies of the ankles in service were normal, other
than for one occasion in 1997 where a question of left ankle
bursitis was raised and clinical correlation was recommended.
The left leg was thereafter placed in a cast.
At his February 1999 retirement examination the veteran
reported experiencing occasional bilateral ankle swelling,
and a history of a sprain. Notably, no right or left ankle
abnormality was identified on physical examination.
The veteran was afforded a VA examination in January 2003.
He complained of bilateral ankle pain and occasional
stiffness. He indicated that he sustained a chip fracture in
the right ankle in 1998 for which he wore a short leg cast
for several weeks. Physical examination of the ankles
disclosed the absence of any abnormality, and the examiner
concluded that the veteran evidenced no physical impairment
of the ankles.
Analysis
Although the veteran was treated in service for right ankle
strains and tendonitis, and a left ankle strain and possible
bursitis, physical examination at his retirement examination
was silent for any right or left ankle disability. The Board
also notes that while a leg cast was prescribed in August
1997, the available records do not support his assertion that
he sustained an ankle fracture.
Of controlling importance, however, is the fact that there is
no post-service medical evidence of right or left ankle
disability. The January 2003 VA examiner, while
acknowledging complaints of bilateral ankle pain and
stiffness, found no evidence of a right or left ankle
disorder.
While the veteran himself contends that he has a bilateral
ankle disorder, there is no indication that he is qualified
through education, training or experience to offer medical
opinions. As a layperson, therefore, his statements as to
medical diagnosis do not constitute competent medical
evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992);
38 C.F.R. § 3.159(a)(1) (2004).
As noted previously, there must be evidence of the current
existence of a claimed disability in order for service
connection to be granted for that disability. Rabideau.
Since the competent evidence on file does not show that the
veteran currently has a right or left ankle disorder, the
preponderance of the evidence is clearly against the claim,
and his claim must be denied. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
II. Bilateral shoulder disability
Factual background
Service medical records show that the veteran was treated in
February 1980 for complaints of left shoulder "popping"
after skiing. X-ray studies were normal and the examiner
diagnosed a sprain.
He was thereafter treated in November and December 1989 for
right shoulder problems variously diagnosed as bursitis,
tendonitis and rule out rotator cuff strain. He denied any
history of definite shoulder trauma. X-ray studies were
negative for any abnormality save for a deformity of the
distal aspect of the clavicle considered probably secondary
to old trauma. He was placed on a temporary profile in
December 1989.
At his February 1999 retirement examination the veteran
complained of chronic pain in both shoulders. While physical
examination did not disclose any pertinent findings, he was
diagnosed with chronic bilateral shoulder pain.
At his January 2003 VA examination, the veteran reported
experiencing bilateral shoulder pain and tenderness. He also
noted that he had dislocated the left shoulder in 1977, and
sprained the right shoulder. Physical examination disclosed
no tenderness or other identified abnormality. The examiner
concluded that the veteran did not evidence any physical
impairment of the shoulders.
Analysis
Although the veteran was treated in 1980 for a left shoulder
sprain, X-ray studies were negative for any abnormality.
Further, the February 1999 retirement examination report,
while recording complaints of left shoulder pain, revealed no
objective evidence of any left shoulder abnormality.
Additionally, while he was treated in 1989 for right shoulder
bursitis and tendonitis, and demonstrated some clavicle
deformity secondary to old trauma, the records are silent for
further reference to right shoulder complaints until his
retirement examination, at which time the examiner did not
diagnose a right shoulder disorder, or otherwise relate any
right shoulder pain to any clavicle deformity.
Significantly, there is no post-service medical evidence of
right or left shoulder disability. In this regard, while the
January 2003 VA examiner recorded complaints of bilateral
shoulder pain, the examiner concluded that the veteran did
not have any current right or left shoulder disability.
While the veteran himself contends that he has a bilateral
shoulder disorder, as noted previously, as a layperson, his
statements as to medical diagnosis do not constitute
competent medical evidence. Espiritu; 38 C.F.R.
§ 3.159(a)(1).
As there must be evidence of the current existence of a
claimed disability in order for service connection to be
granted, Rabideau, and since the competent evidence on file
does not show that the veteran currently has a right or left
shoulder disorder, the preponderance of the evidence is
clearly against the claim, and his claim must be denied.
Gilbert.
III. Bilateral knee disability
Factual background
The service medical records are silent for any complaints,
finding or diagnosis of right or left knee disability until
the veteran presented for his retirement examination. At his
February 1999 retirement examination he reported that his
knees were "worn out" from running. Physical examination
disclosed bilateral knee crepitus. The veteran was diagnosed
with patellofemoral syndrome.
At his January 2003 VA examination the appellant complained
of bilateral knee pain. Physical examination was negative
for any identified abnormality of either knee, and the
examiner did not diagnose any right or left knee disability.
The examiner described the evaluation of the knees as normal.
Analysis
While the veteran was diagnosed with patellofemoral syndrome
affecting both knees at his February 1999 retirement
examination, there is no post-service medical evidence of any
right or left knee disability. The only medical evidence on
file after service indicates that the veteran's knees are
normal.
In essence, the only opinion supportive of the presence of a
current right or left knee disorder consist of the statements
of the veteran himself. As a layperson, his statements as to
medical diagnosis do not constitute competent medical
evidence. Espiritu; 38 C.F.R. § 3.159(a)(1).
In light of the absence of competent evidence showing the
current existence of a right or left knee disorder, the
preponderance of the evidence is against the claim, and his
claim must be denied. Gilbert; Rabideau.
IV. Low back disability
Factual background
Service medical records disclose that the veteran evidenced
scoliosis when examined for entrance onto active duty. He
was thereafter treated on several occasions for muscle and
low back strain, but X-ray studies were essentially negative
for any abnormalities. Specifically, in November 1984, the
veteran complained of low back pain without any history of
trauma. Physical examination led to an assessment of pain.
In October 1985, the veteran reported complaints of a three
day history of back pain, once again without trauma.
Physical examination led to a diagnosis of muscle strain to
midline between C8 and C10.
In December 1998, the veteran reported being involved in an
accident in 1993/1994, and having occasional back pain since.
Physical examination was negative for spasm, evidence of
trauma, or any sensory disorder. The appellant demonstrated
a full range of back motion. The assessment was chronic low
back strain.
At his February 1999 retirement examination the veteran
complained of chronic low back pain. While physical
examination did not disclose any abnormality the examiner
diagnosed low back pain.
At his January 2003 VA examination, the veteran reported
experiencing occasional low back tenderness. The examiner
did not identify any lower back abnormality on examination,
and described the lower back as normal.
Analysis
Despite the notation on the veteran's entrance examination of
scoliosis, X-ray studies of the back in service were silent
for any findings of scoliosis or any other back abnormality.
While the veteran was treated for low back strains on several
occasions, at retirement the examiner did not diagnose a low
back disability, instead concluding that the veteran had low
back pain. Significantly, however, pain alone, without a
diagnosed or identifiable underlying malady or condition,
does not in and of itself constitute a disability for which
service connection may be granted.
The post-service medical evidence on file is silent for any
diagnosed low back disorder. The veteran was examined by VA
in connection with his claim in January 2003, but the
examiner concluded that the low back was normal, and did not
find that the appellant had a low back disorder.
In this case, the only opinion supportive of the presence of
a current low back disorder consist of the statements of the
veteran himself. As discussed previously, as a layperson,
his statements as to medical diagnosis do not constitute
competent medical evidence. Espiritu.
In light of the absence of competent evidence showing the
current existence of a low back disorder, the preponderance
of the evidence is against the claim, and the claim must be
denied. Gilbert; Rabideau.
V. Right foot disability
Factual background
Service medical records show that the veteran was treated for
a contusion to his right foot in December 1998. At his
February 1999 retirement examination he reported experiencing
pain over the ball of his foot, but the examiner did not
report any pertinent physical findings with respect to the
right foot, and did not diagnose a right foot disorder.
At the veteran's January 2003 VA examination, the examiner
concluded that physical examination of the right foot
disclosed no identifiable residuals of the contusion
experienced in service, and that no abnormalities were
present in the right foot on examination.
Analysis
While service medical records show that the veteran suffered
a right foot contusion in December 1998, and while he
complained of right foot pain when examined at his retirement
examination, neither residuals of the right foot contusion,
nor any right foot disorder, was identified on physical
examination in February 1999. Moreover, there is no post-
service medical evidence of any right foot disorder. The
January 2003 VA examiner specifically noted the absence of
any right foot disorder on examination.
In short, other than his own lay statements, which as pointed
out previously do not constitute competent evidence of a
current disorder, there is no evidence suggesting that the
veteran currently has a right foot disorder. The
preponderance of the evidence is therefor clearly against the
claim, and the claim must be denied. Gilbert; Rabideau.
VI. Left hip disability
Factual background
The service medical records show that the veteran was treated
for complaints of left hip pain in December 1998. Physical
examination was negative for any abnormality. At his
February 1999 retirement examination he complained of left
hip pain and exhibited left hip tenderness. The examiner did
not diagnose a left hip disorder.
When examined by VA in January 2003, the veteran reported
occasional left hip tenderness. Physical examination of the
hip was normal, without any evidence of tenderness. The
examiner concluded that no left hip impairment was present.
Analysis
Although the veteran demonstrated left hip tenderness in
service, his complaints were not attributed to any underlying
hip disorder, and following service the evidence is negative
for any diagnosis of left hip disability. The January 2003
examiner specifically concluded that the veteran did not
evidence any left hip impairment. While the veteran himself
believes he has a left hip disorder, as a layperson he is not
competent to render an opinion as to medical diagnosis.
In sum, there is no competent evidence of a diagnosed left
hip disorder in service, and no competent evidence suggesting
the current existence after service of a left hip disorder.
The preponderance of the evidence is therefore against the
claim, and the claim is denied.
In reaching these decisions the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claims, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Entitlement to service connection for a diagnosed shoulder,
left hip, low back, knee, ankle or right foot disability
bilateral ankle disability is denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs